Criminal Defense

BFH ruling on international account information

In a recent ruling dated January 23, 2024 (IX R 36/21), the German Federal Fiscal Court (BFH) ruled on the constitutionality of the automatic exchange of financial account information and its compatibility with fundamental rights. This issue has far-reaching implications for taxpayers with accounts abroad.

Criminal Defense

Cannabis Act (CanG) – Legalization of cannabis in Germany

Cannabis is being legalized in Germany – at least partially: On March 27, 2024, the new German Cannabis Act was published in the Federal Law Gazette and will come into force on April 1, 2024. This marks the end of the era in which cannabis was regulated by the BtMG and in future the Consumer Cannabis Act (KCanG) will be the main law to be taken into account.

In Germany, the following approach is taken: possession of cannabis is legal up to a certain amount and only becomes a criminal offense if it is noticeably exceeded. You are allowed to possess more cannabis at home than you have in your pocket on the street.

The intention is to create a system in which non-commercial cannabis social clubs (“cultivation associations”) serve as a source of supply, although it is quite costly to set up and operate one. The safety requirements, as well as the official requirements, are very high! Probably in order to avoid criminal liability, the legislator has also made the purchase of cannabis unpunishable as long as one does not buy “too much”. Overall, this has been the case in Germany since April 1, 2024:

  • You may possess up to 25 grams of cannabis when you are out and about; at home you may have 50 grams of cannabis;
  • You can buy up to 25 grams of cannabis per day, but no more than 50 grams per month;
  • Cuttings and seeds are excluded from the definition of cannabis, so that there is considerable freedom here, but: You may possess a maximum of 3 living cannabis plants and only if you do not have cannabis at home at the same time;
  • Foreigners and tourists also benefit from these regulations! However, you should stick to the smallest permitted quantity and never buy or carry more than 25 grams. Not even in your hotel room.

Cannabis 2024 and cultivation associations (“cannabis social clubs”)

Numerous questions arise around cannabidiol and legal hemp products, which lie at the intersection of BTM criminal law and competition law. BtMG lawyer Jens Ferner previously worked for many years in unfair competition law, especially cosmetics law and food law.

Today, he advises on the distribution of products for growers’ associations and cannabis social clubs as well as the activities of companies in matters relating to the legal distribution and promotion of cannabis, cannabidiol and legal hemp products. You can find our German-language articles on the Cannabis Act 2024 here.

What is punishable under the KCanG?

A custodial sentence of up to three years or a fine shall be imposed in accordance with Section 34 on anyone who

  1. contrary to § 2 paragraph 1 number 1
    • a) possesses more than 30 grams of cannabis, in the case of flowers, leaves close to the flower or other plant material of the cannabis plant in relation to the weight after drying, in a place that is not his domicile or habitual residence,
    • possesses a total of more than 60 grams of cannabis, in the case of flowers, leaves close to the flower or other plant material of the cannabis plant, based on the weight after drying, or
    • possesses more than three living cannabis plants,
  2. contrary to § 2 paragraph 1 number 2
    • a) cultivates more than three cannabis plants at the same time or
    • b) does not cultivate cannabis plants for personal consumption,
  3. produces cannabis contrary to § 2 paragraph 1 number 3,
  4. trades in cannabis contrary to § 2 paragraph 1 number 4,
  5. imports or exports cannabis contrary to § 2 paragraph 1 number 5,
  6. carries out cannabis contrary to § 2 paragraph 1 number 6,
  7. distributes or passes on cannabis contrary to § 2 paragraph 1 number 7,
  8. supplies cannabis for direct consumption contrary to § 2 paragraph 1 number 8,
  9. administers cannabis contrary to § 2 paragraph 1 number 9,
  10. otherwise places cannabis on the market contrary to § 2 paragraph 1 number 10,
  11. obtains cannabis contrary to § 2 paragraph 1 number 11,
  12. contrary to § 2 paragraph 1 number 12
    • a) acquires or receives more than 25 grams of cannabis per day,
    • b) acquires or receives more than 50 grams of cannabis per calendar month,
  13. extracts cannabinoids contrary to § 2 paragraph 2,
  14. possesses, cultivates, manufactures, imports, exports, acquires, receives, dispenses or transfers cannabis for scientific purposes, extracts cannabinoids from the cannabis plant or trades in cannabis for scientific purposes without authorization pursuant to Section 2 (4) sentence 1,
  15. cultivates cannabis without a permit pursuant to Section 11 (1),
  16. cultivates cannabis contrary to § 17 paragraph 1 sentence 1.

Graduated system in the KCanG

For many, it will be easiest to orientate themselves towards the limits of the criminal offense. In fact, however, there is a permitted range, with fines being imposed for minor transgressions and criminal offenses only for significant transgressions. The following possession is permitted under §3:

(1) Persons who have reached the age of 18 are permitted to possess up to 25 grams of cannabis, in the case of flowers, near-flowering leaves or other plant material of the cannabis plant based on the weight after drying, for personal consumption.

(2) Persons who have reached the age of 18 shall, notwithstanding subsection (1), be permitted to possess cannabis at their place of residence or habitual abode within the scope of this Act as follows:

  1. up to 50 grams of cannabis, in the case of flowers, near-flowering leaves or other plant material of the cannabis plant in relation to the weight after drying, and
  2. up to three live cannabis plants.

In cases of lawful possession of cannabis in accordance with sentence 1 number 1 and paragraph 1, the total quantity of cannabis possessed may not exceed 50 grams of cannabis, in the case of flowers, leaves close to the flower or other plant material of the cannabis plant in relation to the weight after drying.

So you can have up to 25 grams “in your pocket”, but it is only a criminal offense if you have 30 grams or more.

Where in Germany can you buy cannabis?

The legislator has permitted purchase purely on the basis of quantity, not source. As long as the above limits are adhered to, buying from a dealer is no longer punishable! This is different for the seller, the dealer acting illegally is always liable to prosecution.

In the medium term, however, the intention is to acquire them via so-called growers’ associations.

How does this affect existing penalties?

Anyone convicted of an offense that is now unpunishable should be rehabilitated. The public prosecutor’s offices automatically check how to act in the case of sentences that are still being enforced. Even in the case of total sentences where cannabis only played a partial role, the total sentence can (but does not have to!) be opened and redetermined. The central standard is Art. 313 EGStGB, here it will depend on the individual case.

What about the German certificate of good conduct

Entries that are currently unpunishable can be deleted from the Federal Central Criminal Register upon application; for this purpose, an application must be submitted to the public prosecutor’s office in accordance with Section 41 (1) KCanG to the effect that the corresponding entry is “eligible for deletion”. I have already described why this choice of words is tricky. From my point of view, it is unclear whether the expiry period of the BZRG applies in these cases or is to be deleted immediately; the legislator has obviously not recognized the problem.

What about ongoing criminal proceedings?

Here, too, it depends on the individual case: Affected persons who have clearly not acted criminally according to the current state of affairs should not be fobbed off with dismissals after being charged, but should press for an acquittal (if no other offense was also charged). Incidentally, you have to weigh up what makes sense. Many offenses, especially those relating to plantations, must be reassessed, especially in the preparatory stage (where seeds or cuttings play a role), and previous case law must not be applied blindly. The legislator has created a lot of leeway here, which has to be fought for in court.

Take care when driving

The current situation regarding driving is completely unclear. From a lawyer’s point of view, we can only advise you not to smoke weed and then drive. Allow at least 3 full consumption-free days between smoking weed and driving. At least.

What are underestimated crimes?

There are criminal offenses that are easily underestimated because so much seems to be legal: even if you are allowed to purchase cannabis, you are not allowed to sell it to others or take it abroad. And under no circumstances may you supply cannabis to minors, as this is a serious criminal offense!

Tourists in Germany

The law does not differentiate between Germans and foreigners or tourists. From a local perspective, anyone who purchases up to 25 grams per day is privileged and will not be punished. But: Pay attention to the monthly maximum limit of 50 grams and never possess more than 25 grams as a tourist! Even if you are allowed to have up to 50 grams “at home”, a hotel room will most likely not be considered a residence within the meaning of the Cannabis Act. It is therefore best to observe the minimum regulations.

What’s next for the Cannabis Act?

The law is highly controversial in Germany and it should be assumed that this law will come under very critical scrutiny after the next general election in 2025.

Labour law

Age discrimination in job advertisements by searching for “digital native”

In a remarkable decision, the German labor court in Heilbronn (case no. 8 Ca 191/23) dealt with the issue of age discrimination in job advertisements. The focus was on the use of the term “digital native” and its implications for older applicants.

Labour law

Use of personal data in an employment law context

In its ruling on January 27, 2023, the Baden-Württemberg State Labour Court had to assess a complex issue relating to the use of personal data in an employment law context. The case concerned the dismissal of an employee, with the use of data from his work smartphone playing a central role.

Labour law

Salary reclaim due to non-performance of work in the home office

In its ruling of September 28, 2023 (case reference 5 Sa 15/23), the Mecklenburg-Vorpommern Regional Labour Court made important decisions regarding the reclaiming of salary due to non-performance of work in the home office and the associated burden of presentation and proof.

Labour law

Whistle-blowing and trade secret protection in employment law

A decision by the Düsseldorf Regional Labor Court (LAG, 3 Sa 377/22) sheds an interesting light on the topic of whistle-blowing and the protection of trade secrets in the context of employment relationships. The case provides an opportunity to examine both the legal framework and the practical consequences for employers and employees

Labour law

The Federal Labour Court’s Ruling on WhatsApp Chat Groups in Employment Law: An Analysis

The Federal Labour Court (BAG) in Germany recently addressed a case focusing on the use of content from WhatsApp chat groups in employment law proceedings. The case, identified as 2 AZR 19/23, involved the permissibility of using chat transcripts from a WhatsApp group as evidence in a termination case.

Technology- & IT-Law

German government on China strategy (2024)

The Federal Government’s China Strategy provides a comprehensive perspective on the current state of and future opportunities for relations with China. It serves as a guideline for the various ministries of the German government to pursue a unified and coherent policy towards China, especially with regard to digital issues. Current questions in the Bundestag reveal the current position of the German government with regard to China in terms of digital policy.

Technology- & IT-Law

ASEAN Digital Ministerial Meeting: ASEAN to expand digital factor

4th ASEAN Digital Ministers’ Meeting 2024: The fourth ASEAN Digital Ministers’ Meeting, a conference of ASEAN member states’ ministers responsible for technology, was held in early February 2024. The ministers will discuss AI governance and regional anti-fraud issues and sign agreements to promote digital innovation and business opportunities.

The annual meeting, formerly known as the Asean Telecommunications and Information Technology Ministers Meeting, shows how Asean is constantly evolving – also with regard to the EU! You can find this article in German in our German-language blog.

Criminal Defense Liability of the management Technology- & IT-Law

Tax problems with DDP clauses and shipping from Asia to Germany

A current article in the magazine PraxisSteuerstrafrecht on the topic of criminal tax law and imports deals with customs law and, in particular, the risks of the DDP (Delivered Duty Paid) delivery condition for imports from China for online retailers. It explains how Chinese suppliers often offer customs declaration and tax payment as part of their service, which sounds tempting but carries legal and tax risks.

The complexity and pitfalls of this practice, such as changing the delivery route, the role of indirect representatives in the customs declaration and the tax consequences, are described in detail. The article makes it clear why caution is required both on the Asian side and on the German recipient side. The topic is also worth a few lines here.